Citation Nr: 0906268
Decision Date: 02/20/09 Archive Date: 02/27/09
DOCKET NO. 04-25 153 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for generalized anxiety
disorder.
3. Entitlement to a disability rating in excess of 10
percent for left clavicle fracture residuals prior to May 10,
2006.
4. Entitlement to a disability rating in excess of 20
percent for left clavicle fracture residuals since May 10,
2006.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
The Veteran had active service from October 1955 to October
1959.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a June 2003 rating decision, in which
the RO denied service connection for hypertension and for
generalized anxiety disorder, as well as denied a disability
rating higher than 10 percent for service-connected left
clavicle fracture residuals. The Veteran filed a notice of
disagreement (NOD) in July 2003, and the RO issued a
statement of the case (SOC) in June 2004. The Veteran filed
a substantive appeal (via a VA Form 9, Appeal to Board of
Veterans' Appeals) in June 2004. In August 2007, the RO
granted an increased 20 percent rating for left clavicle
fracture residuals, but made the increase effective from May
10, 2006 (as reflected in a supplemental SOC (SSOC)).
(Parenthetically, the Board notes that, although the RO
subsequently erred in characterizing the increased rating
claim as one for a rating greater than 10 percent in an
October 2008 SSOC, that document was merely to acknowledge
that additional notice was sent to the veteran, and does not
change the fact that an increased 20 percent rating was, in
fact, awarded from May 10, 2006.).
Because higher ratings for .left clavicle fracture residuals
are available before and after May 10, 2005, and the veteran
is presumed to seek the maximum available benefit, the Board
has characterized the appeals encompassing the last two
matters set forth on the title page. See AB v. Brown, 6 Vet.
App. 35, 38 (1993).
.In January 2009, the Veteran testified during a hearing
before the undersigned Veterans Law Judge at the RO; a
transcript of that hearing is of record. During the hearing,
the Veteran submitted additional written statements, along
with a signed waiver of RO jurisdiction. This evidence is
accepted for inclusion in the record on appeal. See 38
C.F.R. § 20.800 (2008).
The Board's dismissal of the claims for service connection
for hypertension and generalized anxiety disorder is set
forth below. The matters of increased ratings for the
Veteran's left clavicle fracture residuals before and after
May 10, 2006 are addressed in the remand following the order;
these matters are being remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the Veteran when further action, on his part, is required.
FINDING OF FACT
In January 2009, prior to the promulgation of a decision in
the appeal, the appellant withdrew from appeal the claims for
service connection for hypertension and generalized anxiety
disorder.
CONCLUSION OF LAW
The criteria for withdrawal of a substantive appeal as to the
claims for service connection for hypertension and
generalized anxiety disorder have been met. 38 U.S.C.A. §
7105(b)(2), (d)(5) (West 2002 & Supp. 2008); 38 C.F.R. §§
20.202, 20.204 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A substantive appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2008). Withdrawal may be
made by the appellant or by his or her authorized
representative. 38 C.F.R. § 20.204 (2008).
During the hearing before the undersigned Veterans Law Judge
in January 2009, the Veteran indicated that he wished to
withdraw from appeal the matters of service connection for
hypertension and generalized anxiety disorder. Thus, no
allegations of errors of fact or law remain for appellate
consideration with respect to these matters. Accordingly,
the Board does not have jurisdiction to review these matters
on appeal and they must be dismissed.
ORDER
The appeal as to the claim for a service connection for
hypertension is dismissed.
The appeal as to the claim for a service connection for
generalized anxiety disorder is dismissed.
REMAND
The Board's review of the claims file reveals that further RO
action on the increased rating claims on appeal is warranted.
Pertinent to the both matters, the record reveals that
specific VA records are outstanding. In correspondence dated
July 2006, the Veteran reported treatment for his left
shoulder from the VA Long Beach Health Care System. The
Veteran specifically identified treatment at the VA Hospital
in Long Beach, California. It does not appear that any
attempt was made by the RO to obtain those records, and the
claims file contains only VA records from the West Los
Angeles VA Medical Center (VAMC) and the Gardena VA
Outpatient Clinic. Moreover, the most current VA medical
records pertaining to treatment of left clavicle associated
with the claims file are dated in October 2006.
The Board emphasizes that records generated by VA facilities
that may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. See Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Hence, the RO should obtain and
associate with the claims file all outstanding medical
records of the Veteran's treatment and/or evaluation for his
left clavicle since October 2006, as well as all such records
from the VA Long Beach Health Care System.
The Board also points out that, under 38 C.F.R. § 3.159(b),
efforts to obtain Federal records must continue until either
the records are received, or notification is provided that
further efforts to obtain such records would be futile. See
38 C.F.R. § 3.159(c)(1).
The evidence also suggests a worsening of the veteran's
disability. During the January 2009 Board hearing, the
veteran generally asserted that his left clavicle disability
has worsened since the most recent VA examination of record
addressing this condition, in May 2006. See transcript, at
page 5. More specifically, the Veteran stated that he could
not raise his arm to shoulder level, and that he experienced
extreme pain with any movement. See transcript, at page 7.
Such symptomatology is not reflected in the May 2006
examination report.
Therefore, the Board finds that the current record does not
provide a sufficient basis for adjudication of the claim for
a rating higher than 20 percent for left clavicle fracture
residuals since May 10, 2006, and that a new VA orthopedic
examination, with more contemporaneous medical findings, is
needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159;
McClendon v. Nicholson, 20 Vet, App. 79, 81 (2006).
Hence, the RO should arrange for the Veteran to undergo
orthopedic examination, by an appropriate physician, at a VA
medical facility. The Veteran is hereby advised that failure
to report for a scheduled examination, without good cause,
shall result in denial of the claim for increase. See 38
C.F.R. § 3.655(b) (2008). Examples of good cause include,
but are not limited to, the illness or hospitalization of the
claimant and death of an immediate family member. Id. If
the Veteran does not report for the scheduled examination,
the RO must obtain and associate with the claims file (a)
copy(ies) of any notice(s) of the date and time of the
examination sent to him by the pertinent VA medical facility.
Further, to ensure that all due process requirements are met,
and that the record before the examiner is complete, the RO
should also give the Veteran another opportunity to present
information and/or evidence pertinent to the claim remaining
on appeal, notifying him that he has a full one-year period
for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but
see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2008) (amending the
relevant statute to clarify that VA may make a decision on a
claim before the expiration of the one-year notice period).
The RO should also invite the Veteran to submit all pertinent
evidence in his possession.
The Board is also aware of the recent decision in Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores,
the United States Court of Appeals for Veterans Claiims
(Court) found that, at a minimum, adequate VCAA notice
requires that VA notify the claimant that, to substantiate a
claim for an increased rating: (1) the claimant must provide,
or ask VA to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and
daily life; (2) if the diagnostic code under which the
claimant is rated contains criteria necessary for entitlement
to a higher disability rating that would not be satisfied by
the claimant demonstrating a noticeable worsening or increase
in severity of the disability and the effect of that
worsening on the claimant's employment and daily life (such
as a specific measurement or test result), the Secretary must
provide at least general notice of that requirement to the
claimant; (3) the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant diagnostic codes; and (4) the
notice must also provide examples of the types of medical and
lay evidence that the claimant may submit (or ask VA to
obtain) that are relevant to establishing entitlement to
increased compensation.
Here, the RO has already taken steps to address compliance
with Vazquez-Flores by means of a June 2008 letter to the
Veteran. Nevertheless, the RO should ensure that any future
notice to the Veteran with respect to the claims on appeal
meets the requirements of Vazquez-Flores.
After providing the appropriate notice, the RO should attempt
to obtain any additional evidence for which the Veteran
provides sufficient information, and, if needed,
authorization, following the current procedures prescribed in
38 C.F.R. § 3.159 (2008).
The actions identified herein are consistent with the duties
imposed by the Veterans Claims Assistance Act of 2000 (VCAA).
See 38 U.S.C.A. §§ 5103,5103A (West 2002);38 C.F.R. § 3.159
(2008). However, identification of specific action requested
on remand does not relieve the RO of the responsibility to
ensure full compliance with the VCAA and its implementing
regulations. Hence, in addition to the action requested
above, the RO should also undertake any other development
and/or notification action deemed warranted by the VCAA prior
to adjudicating the claim on appeal.
Accordingly, these matters are hereby REMANDED to the RO, via
the AMC, for the following action:
1. The RO should obtain from the VA Long
Beach Health Care System copies of all
outstanding VA records of the Veteran's
evaluation and/or treatment of the left
clavicle fracture residuals. The RO
should also obtain such records from the
VAMC in West Los Angeles (to include
records from the Gardena Outpatient
Clinic) from October 2006 to present. In
requesting these records, the RO should
follow the current procedures of 38 C.F.R.
§ 3.159(c) with respect to requesting
records from Federal facilities. All
records/responses received should be
associated with the claims file.
2. The RO should send to the Veteran and
his representative a letter requesting
that the Veteran provide sufficient
information, and, if necessary,
authorization, to enable the RO to obtain
any additional evidence not of record that
pertains to the increased rating claims on
appeal.
The RO should explain the type of
evidence that is the Veteran's ultimate
responsibility to submit. The RO should
ensure that its letter meets the
requirements of Vazquez-Flores. The RO's
letter should clearly explain to the
Veteran that he has a full one-year period
to respond (although VA may decide the
claim within the one-year period).
3. If the Veteran responds, the RO should
assist him in obtaining any additional
evidence identified by following the
current procedures set forth in 38 C.F.R.
§ 3.159. All records and responses
received should be associated with the
claims file. If any records sought are
not obtained, the RO should notify the
Veteran of the records that were not
obtained, explain the efforts taken to
obtain them, and describe further action
to be taken.
4. After all available records and
responses from each contacted entity are
associated with the claims file, the RO
should arrange for the Veteran to undergo
orthopedic examination of the left
clavicle, by an appropriate physician
(M.D.), at a VA medical facility. The
entire claims file, to include a complete
copy of this REMAND, must be made
available to the physician designated to
examine the Veteran, and the examination
report should reflect consideration of the
Veteran's documented medical history and
assertions. All indicated tests, studies,
and consultations should be accomplished
(with all findings made available to the
requesting physician prior to the
completion of his or her report), and all
clinical findings should be set forth in
detail.
The examiner should offer specific
findings as to whether, during the
examination, there is objective evidence
of pain on motion, weakness, excess
fatigability, and/or incoordination
associated with the service-connected left
clavicle fracture residuals. If pain on
motion is observed, the examiner should
indicate the point at which pain begins.
The physician should indicate whether, and
to what extent, the Veteran experiences
likely functional loss due to pain and/or
any of the other symptoms noted above
during flare-ups and/or with repeated use;
to the extent possible, the examiner
should express any such additional
functional loss in terms of additional
degrees of limited motion.
In light of the foregoing, the examiner
should indicate (a) whether motion of the
left arm is possible to the shoulder
level, or to midway between the side and
shoulder level, or is limited to 25
degrees from the side; and (b) whether
there is ankylosis of the left
scapulohumeral articulation, and if so,
whether the ankylosis is favorable,
intermediate between favorable and
unfavorable, or unfavorable.
The examiner should set forth all
examination findings, along with the
complete rationale for the conclusions
reached, in a printed (typewritten)
report.
5. If the Veteran fails to report to the
scheduled examination, the RO must obtain
and associate with the claims file
copy(ies) of any notice(s) of the
examination sent to the Veteran by the
pertinent VA medical facility.
6. To help avoid future remand, the RO
must ensure that all requested development
action has been accomplished (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268, 271 (1998).
7. After completing the requested
actions, and any additional notification
or development deemed warranted, the RO
should adjudicate the claims for higher
ratings for left clavicle fracture
residuals, prior to and since May 10,
2006. If the veteran fails, without good
cause, to report to the scheduled
examination, the RO should apply the
provisions of 38 C.F.R. § 3.655(b), as
appropriate. Otherwise, the RO should
adjudicate each claim in light of all
pertinent evidence and legal authority.
8. If any benefit sought on appeal
remains denied, the RO must furnish to the
Veteran and his representative an
appropriate supplemental SOC that includes
clear reasons and bases for all
determinations, and afford them the
appropriate time period for response
before the claims file is returned to the
Board for further appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The Veteran need take
no action until otherwise notified, but he may furnish
additional evidence and argument during the appropriate time
frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999);
Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown,
8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs